Monday, June 14, 2004

An unexpected bulwark

I'm still trying to play catch-up, so it will be old news to many of you that University of Idaho computer-science student Sami Al-Hussayen was acquitted of a variety of terrorism charges late last week. The jury was hung on eight lesser charges. (Here's the Washington Post report on the trial's outcome.)

As I discussed earlier, the case was a real test of the Patriot Act -- and it came up far short. Indeed, there are grave questions now about whether its provisions are acceptable in the broader context of American constitutional law.

The Boise case in fact is only the latest and most noteworthy of a series of failures by John Ashcroft's Justice Department to apply the law appropriately:

The verdicts point up a little-known reality of the Justice Department's war on terrorism since the attacks of Sept. 11, 2001. While it has won scores of highly publicized guilty pleas in terrorism-related cases -- often by dropping the most serious charges -- its trial record is mixed.

It has taken only two other major terrorism-related cases to trial since the Sept. 11 attacks, and at least some defendants have been acquitted in each.

In one case involving an alleged domestic "sleeper cell" in Detroit, the judge has threatened to throw out all three convictions because prosecutors allegedly withheld exculpatory information.

The case against Al-Hussayen, the son of a retired Saudi education minister who had been studying in the U.S. for nine years, raised questions from the start.

His arrest 16 months ago shocked the local Muslim community in the college town of Moscow, where he was known as a family-oriented father of three who shortly after the Sept. 11 attacks organized a blood drive and a candlelight vigil that condemned the attacks as an affront to Islam.

He was eventually charged under a section of the Patriot Act that makes it illegal to provide "expert advice or assistance" to terrorists. The provision was declared unconstitutional by a federal judge in Los Angeles in January, although that ruling was not binding on the Idaho case.

"In some respects, this was the broadest reach in all of the government's anti-terrorism prosecutions," said David Cole, a Georgetown University Law Center professor.

"When President Bush and [Vice President] Dick Cheney say, 'You have not shown me a single abuse of the Patriot Act,' I think people can now say, 'Look at the Sami Omar Al-Hussayen case -- a case where the government sought to criminalize pure speech and was resoundingly defeated.' "

Idaho is often reviled by liberals for many reasons, some of them well earned. But it's worth remembering that nearly a century ago, a Boise jury delivered a verdict that kept the nation's nascent labor movement from being crushed into oblivion (see J. Anthony Lukas' Big Trouble for the details). I wonder if another Boise jury has performed a similar national service.

Sara Robinson has worked as an editor or columnist for several national magazines, on beats as varied as sports, travel, and the Olympics; and has contributed to over 80 computer games for EA, Lucasfilm, Disney, and many other companies. A native of California's High Sierra, she spent 20 years in Silicon Valley before moving to Vancouver, BC in 2004. She currently is pursuing an MS in Futures Studies at the University of Houston. You can reach her at srobinson@enginesofmischief.com.